Another SB277 lawsuit rejected – anti-vaccine Voice for Choice loses

SB277 lawsuit rejected

On 20 November 2018, the California court of appeal for the third appellate district, in a strong decision, rejected a challenge by the anti-vaccine organization A Voice for Choice and three individual plaintiffs to SB277, California’s law removing the personal belief exemption to school immunization mandates. The decision included scathing criticisms of the arguments and a powerful endorsement of school vaccines mandates. This article will examine yet another SB277 lawsuit rejected by courts.

Background

The first iteration of the lawsuit in question here was first discussed in November 2016, and it was then filed with a federal district court. After the initial rejection of that lawsuit, it was refiled with a state court, and after that was rejected, the plaintiffs appealed. 

The court opened by stating that “Plaintiffs’ arguments are strong on hyperbole and scant on authority.” Its decision drew extensively on the California Court of Appeal, Second Appellate District’s decision in Brown v. Smith, and on the federal district’s court decision in Whitlow v. California (discussed here). 

The Court opened with the California Supreme Court decision in Abeel v. Clark (1890) 84 Cal. 226, in which the Court upheld a school immunization requirement, and the extensive jurisprudence, state and federal, that upheld vaccines mandates since. It reminded us that for over a century, courts upheld school mandates in the face of challenges, and cited Brown v. Smith to explain that “[t]his is another such case, with a variation on the theme but with the same result.” 

Setting the ground, it explained the act, and its purpose “to provide “[a] means for the eventual achievement of total immunization of appropriate age groups against [certain] diseases.” (§ 120325, subd. (a).)” It explained the need for the act – the measles outbreak centered on Disneyland and the warning it provided that vaccine rates are too low, and exemption rates increasing too fast, and in some areas are dangerously high.

It set out the standard of review for a demurrer. A demurrer is a claim that the complaint does not raise a cause of legal action – in some jurisdictions, it would be titled a motion to dismiss. Because sustaining – accepting – a demurrer means a case is kicked out without going through fact-finding, without plaintiffs having their full day in court, the standard is pretty high, and appellate review is aggressive: 

We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action. For purposes of review, we accept as true all material facts alleged in the complaint, but not contentions, deductions or conclusions of fact or law. We also consider matters that may be judicially noticed.” (Brown v. Smith, supra, 24 Cal.App.5th at p. 1141.) We may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court. 

De novo means the appellate court is not bound by the finding and conclusions of the court below but reevaluates the claims from scratch. As the court explained, it is assuming factual claims are true, though if there’s judicial notice of well known, external facts, it can reject clearly implausible claims.

Note that a demurrer is usually sustained with a “leave to amend” because the court thinks it is possible for the plaintiff to state facts sufficient to constitute a cause of action. In this case, the demurrer was sustained without leave to amend because the court believes that the plaintiffs’ claim is so weak that no amending of the complaint will solve the fundamental problems.

SB277 lawsuit rejected – substantive due process

A substantive due process claim argues that the government overstepped in interfering with individual rights, beyond a legal standard. 

Here, there are three parts to this argument, as addressed by the Court – plaintiffs claim that SB277 violates their right to bodily autonomy, conditions their right to attend school on giving up bodily autonomy, and interferes with their parental rights. The court rejected the argument both because plaintiffs did not provide any legal authority supporting it (they couldn’t – there are none) and because they did not succeed in convincing the court that the law violates either of the possible legal standards. A substantive due process claim that affects a fundamental right (like bodily autonomy) would be held to the high standard of strict scrutiny. Under it, a law is “upheld only if it is narrowly tailored to promote a compelling governmental interest.” In other claims, a much lower bar – rational-basis review – applies. The court found SB277 would meet either standard. The court said that:

“It is well established that laws mandating vaccination of school-aged children promote a compelling governmental interest of ensuring health and safety by preventing the spread of contagious diseases.”

It cited multiple cases upholding vaccine mandates and criticized the plaintiffs for not addressing them and responding to them. I’m not sure that’s completely fair – the plaintiffs did try to address at least one of the cases the court pointed to, Zucht v. King and the decision later responded to that. But the court is completely right that plaintiffs did not succeed in providing a convincing reason to reject that abundant jurisprudence. 

Addressing bodily autonomy, the court rejected plaintiffs’ effort to argue that the vaccine cases are before cases upholding bodily autonomy, and therefore invalid. The court said: “We are aware of no case holding mandatory vaccination statutes violate a person’s right to bodily autonomy.”

I agree with the court’s conclusion, but I would support it differently. First, at least one famous bodily autonomy case – Schloendorff v. Society of New York Hospital  dates to 1914, while Zucht is a 1922 case, so the timing does not fit the plaintiffs’ claim. But more importantly, while I think the bodily autonomy cases would be important if a state were to impose an adult mandate, that’s not the issue here. These are children who are required to be vaccinated – and bodily autonomy does not work quite the same way. The children are not capable of making autonomous decisions, and the issue is not their autonomous choice not to be protected from diphtheria, measles, hib, etc. – it’s their parents’ choice not to protect them.

There are other arguments against the cases, but I want to keep this short, so I will not go into detail about them. 

The more tricky prong of the strict scrutiny standard for this purpose is that a law limiting rights has to be narrowly tailored. Here, plaintiffs – as they should have – argued that there are other, less aggressive means to prevent outbreaks. And the court – correctly, in my view – rejected it, drawing on Brown v. Smith and Whitlow again. The court pointed out that the state’s objective – total immunization of the relevant age groups – is ambitious, and lesser means won’t achieve it. It then quoted language from Brown strongly endorsing mandates (pdf):

“This argument fails, of course, as compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases. As is noted in the legislative history, studies have found that ‘when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease,’ and community immunity wanes if large numbers of children do not receive required vaccinations.”

The court gave short shrift to the plaintiffs’ claim that SB277 violates privacy, because when dealing with health matters, the review is under rational-basis review, and the desire to prevent dangerous diseases trumps it (to those interested in a longer analysis, I engaged in one here).

Probably the strongest claim plaintiffs had is the claim that SB277 violates the right to education – though even that is not particularly convincing. But the Court rejected this claim easily, too, because the two previous decisions – Brown v. Smith and Whitlow – already dealt with the issue. The court found that the precedent enshrining the right to education – Serrano – did not apply, for two reasons.

First, it was not applicable on the facts:

[quoting Brown] “Serrano struck down a public school financing scheme as violating equal protection guaranties ‘because it discriminated against a fundamental interest — education — on the basis of a suspect classification — district wealth — and could not be justified by a compelling state interest under the strict scrutiny test thus applicable.’ ” (Brown v. Smith, supra, 24 Cal.App.5th at p. 1145.) Like the plaintiffs in Brown, the plaintiffs here “cite Serrano to support their claim that Senate Bill No. 277 . . . violates their constitutional right to attend school, but fail to explain its application here. There is no ‘suspect classification’ underlying Senate Bill No. 277.”

Second, and just as important, even assuming the statute was held to strict scrutiny because education is a fundamental right, the court already explained that it can pass strict scrutiny. 

Finally, in a very short statement, the court agreed with the Brown court that SB277 did not violate religious freedom. 

In short, this decision agreed with previous jurisprudence that school mandates are constitutional and valuable.

SB277 lawsuit rejected – what next?

A Voice for Choice has two choices. It can accept the loss and go home, or it can try and appeal to the California Supreme Court. Not appealing has advantages: this is an unpublished decision, and as such, does not serve as a precedent – it cannot be cited or relied on. It is, however, binding on the parties to the case. A Supreme Court decision, if one happens, could well echo the strong endorsement of mandates, based on strong evidence that they work and an extensive jurisprudence, and would change the legal situation for the worse – it would end the issue in terms of California law (since the claims in this lawsuit are mostly state claims, the California Supreme Court is the last word on them). On the other hand, not appealing gives up a chance to change the legal situation, leaves SB277 intact, and leaves in place the other appellate court decision – Brown v. Smith – supporting it. 

If A Voice for Choice appeals, the Supreme Court will get to decide whether to take the case. The California Supreme Court takes very few civil law cases, and this one is based on extensive jurisprudence rather than breaking new ground – so there is a strong chance it will not be taken up. On the other hand, the court may want to address the question of immunization mandates in current times. 

We will see. 

8 December 2018 Update

The state requested that the court’s decision be published. On December 6, 2018, the court granted the request, giving the decision precedential force.

Constitutionality of mandatory vaccinations – Robert F Kennedy Jr. is wrong

If you’re a regular reader of this blog or are just generally aware of current issues regarding vaccinations, you know that Governor Jerry Brown of California signed SB 277 into law. The law removes so-called “personal belief exemptions” for vaccinating children before they enter schools.

Personal belief exemptions were used (and frequently abused) by parents in California to exempt their children from vaccinations using religious beliefs (hardly any mainstream religion is opposed to vaccinations) or the “I don’t like vaccines” belief statement. So many California children were not fully vaccinated, especially when they were clustered in certain areas of the state, lead to several outbreaks of measles, whooping cough, and other infectious diseases.

Thus, the California Senate, led by Senator and Dr. Richard Pan, voted for SB 277, which sailed through the California Senate and Assembly, subsequently becoming law. Its sole purpose was to protect the children of California, the country’s most populous and wealthiest state, from ravages of diseases that were once on the verge of extinction.

Despite the overwhelming support from the legislature and citizens of the state, some groups remain steadfastly opposed. One trope being pushed is doubts about the constitutionality of mandatory vaccinations for children.

Even a group of lawyers wrote a letter to the California legislature, “Statement of Lawyers Opposed to California SB 277,” that tries to deny the constitutionality of mandatory vaccinations for children. The letter concludes:

…we strongly urge you to decline the temptation to tamper with California’s legislative scheme that works to achieve public health objectives while protecting the rights of individuals to make conscientious medical decisions regarding their own health.

Please take the responsible course by rejecting SB 277 and avoiding the legal, educational, and health decision-making chaos that would follow from enactment of this legislation.

The letter is signed by over 150 attorneys but appeared to be written by one Robert F. Kennedy, Jr, a famous attorney with a long history of playing “fast and loose” with the science regarding vaccines. Last month, this blog’s good friend, Dorit Rubinstein Reiss, who spends most of her time (as far as I can tell) writing about legal issues with vaccines, replied to Kennedy’s letter with real science, real constitutional law, and real facts.

Continue reading “Constitutionality of mandatory vaccinations – Robert F Kennedy Jr. is wrong”

Dorit Rubinstein Reiss – an index of her vaccine articles on this website

Dorit Rubinstein Reiss

Dorit Rubinstein Reiss – Professor of Law at the University of California Hastings College of the Law (San Francisco, CA) – is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines (generally, but sometimes moving to other areas of medicine), social policy and the law. Her articles usually unwind the complexities of legal issues with vaccinations and legal policies, such as mandatory vaccination and exemptions, with facts and citations.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination–she really is a well-published expert in this area of vaccine policy, and doesn’t stand on the pulpit with a veneer of Argument from Authority, but is actually an authority. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

She was also one of the many contributors to the book, “Pseudoscience – The Conspiracy Against Science.”

Many bloggers and commenters on vaccine issues will link to one or more of her articles here as a primary source to counter an anti-vaccine claim. The purpose of this post is to give you a quick reference to find the right article to answer a question you might have.

Below is a list of articles that Dorit Rubinstein Reiss has written for this blog, organized into some arbitrary and somewhat broad categories for easy reference. This article will be updated as new articles from Professor Reiss are published here. We also may update and add categories as necessary.


Continue reading “Dorit Rubinstein Reiss – an index of her vaccine articles on this website”

Plus ça change – anti-vaccine activists revive the Hannah Poling case

Hannah Poling

Following a pattern we have seen repeatedly, anti-vaccine activists have tried to claim a conspiracy to hide a link between vaccines and autism. The latest effort, reviving the Hannah Poling case, follows the pattern we have seen in previous cases – anti-vaccine activists claim that the government knew of evidence that vaccines cause autism (in this case, through mitochondrial disorders), that the government committed fraud to hide that information, and that the combination of fraud and evidence should be a game changer.

As with those past events, the claims cannot withstand scrutiny. In this case, another claim was added – a denial of due process for claimants in the Omnibus Autism Proceedings generally and in one family’s case specifically. This claim, too, does not hold. 

In contrast to the claims in the latest set of anti-vaccine articles, there was no fraud by the government, the behavior they complain about did not decide the fate of the Omnibus Autism Proceedings, they provide no new evidence that vaccines cause autism, the mitochondrial claim is neither new nor strong, and there was no denial of due process to the claimants in the Omnibus Autism Proceeding or in the specific case in question. Continue reading “Plus ça change – anti-vaccine activists revive the Hannah Poling case”

Israel vaccine law proposal – seeking balance to improve vaccination rates

With the support of a local pro-vaccine non-profit made of parents and professional volunteers, two parliament members are proposing an Israel vaccine law to improve immunization rates. This and other proposals are a response to a measles outbreak made up mostly of unvaccinated individuals. The proposal explicitly seeks to improve disease prevention while minimizing the effect on autonomy. It does so with a mix of measures that mirror laws existing in other countries and new ideas. 

While the proposal is likely to face criticism from both immunization opponents and those seeking stronger measures, the proposed Israel vaccine law has potential to improve immunization rates in Israel and may be a better fit for Israel’s situation than alternatives. It is clear that a lot of thought went into it. Continue reading “Israel vaccine law proposal – seeking balance to improve vaccination rates”

Courts and science – talc and glyphosate probably do not cause cancer

courts and science

I’ve written about this many times before – courts do not get to decide what is good or bad science. Although courts and science may not necessarily be incompatible, attorneys, juries, and judges are generally not trained in scientific research, scientific methods, scientific publications, and/or scientific reasoning.

Two relatively recent cases are strong evidence that courts and science can be quite incompatible. In the first case, a jury ordered pharmaceutical giant Johnson and Johnson (JNJ) to pay US$4.69 billion in damages to 22 women who claimed that the company’s talcum powder products caused ovarian cancer. In the second case, a jury ordered chemical manufacturer Monsanto to pay US$289 million to a janitor who claimed that Round-Up (glyphosate) caused his terminal cancer.

The problem with both of these cases is that there is, at best, some weak, unrepeated scientific evidence that supports their claims. However, if you refrain from cherry-picking articles on PubMed, you’ll find that the vast majority of research either doesn’t support their claims or even shows that there are no links between talc or glyphosate and cancer.

Let’s take a look at the science in both of these cases, and then, let’s find out why courts and science are not necessarily compatible. And remember, this isn’t a recent problem – an American court once rejected evolution during the infamous Scopes Monkey Trial. So science has been skeptical of the involvement of courts and science for a very long time. Continue reading “Courts and science – talc and glyphosate probably do not cause cancer”

Japan banned Gardasil – another ridiculous anti-vaccine myth

Japan Banned Gardasil

One of the most popular zombie memes and tropes of the anti-vaccine movement is that Japan banned Gardasil, the HPV vaccine. And like most of those zombie memes and tropes, the facts are a lot different than the anti-vaccine claims. Per usual.

Although I don’t quite understand the reasoning, the anti-vaccine religion absolutely hates Gardasil, possibly more than any other vaccine. These zealots maintain that the HPV vaccines cause all kinds of harm to teens and young adults. Yet, there are literally mountains of data derived from numerous huge epidemiological studies that the Gardasil cancer-preventing vaccine is one of the safest vaccines on the market.

So if you really want to prevent cancer, one of the best ways available to you is getting the HPV vaccine. The idea is so simple, yet is clouded by the myths about HPV vaccines – one of the most popular, of course, is that Japan banned Gardasil. Let’s examine this fable with a critical and skeptical eye.

Spoiler alert – Japan did no such thing.

Continue reading “Japan banned Gardasil – another ridiculous anti-vaccine myth”

Flu vaccine mandate for day care reinstated by New York court

flu vaccine mandate

On Thursday, June 28, 2018, New York State’s highest court, the Court of Appeals, unanimously reinstated New York City’s flu vaccine mandate for certain daycares, which was previously struck down by two lower courts on different grounds. The decision, Garcia v. New York City Department of Health and Mental Hygiene, is mostly about a specific legal issue – the line between when agencies act independently, and when they need legislative direction and direct authority to act.

At its core, it is a question about the limits of bureaucratic power. However, the decision also makes it clear that the New York City Board of Health has extensive power to establish a flu vaccine mandate (and for other vaccines) and to act to prevent infectious diseases. In that sense, it’s good news, upholding the ability of the Board to protect public health.  Continue reading “Flu vaccine mandate for day care reinstated by New York court”

Dr Bob Sears medical license on probation resulting from his anti-vaccine views

Dr Bob Sears

On 27 June 2018, Dr Robert (Bob) Sears, an anti-vaccine pediatrician, agreed to a stipulation with the California Medical Board that put his license to practice on probation and subjected him to a set of non-trivial conditions. The revocation of the medical license of Dr Bob Sears was stayed by the Medical Board – it will not become operative unless he violates the conditions – but given the specific allegations in the complaint and the fact that this was his first disciplinary action, an immediate full revocation was not likely. The sanction is non-trivial, and a clear warning against future misconduct.  Continue reading “Dr Bob Sears medical license on probation resulting from his anti-vaccine views”